Object restrictions on the menu
Many advocate-general (AG) opinions are just a forgettable ‘entremet’ between the General Court hors d’oeuvre and the main course offered by the Court of Justice. But once in a while a game-changing AG opinion is offered up — for me (and many competition lawyers, particularly those with an interest in the comp-IP interface), these would be the opinion of Sir Francis Jacobs in Oscar Bronner and that of Sir Francis Jacobs in Syfait/GSK (a case in which the main meal was considerably delayed).
And now we have the opinion of AG Nils Wahl in Cartes Bancaires. The central subject of the opinion is the question of whether the tariff arrangements of Cartes Bancaires (a grouping of French banks) in relation to credit cards is an agreement that restricts competition by ‘object’.
There has been a marked expansion of the object category of anti-competitive agreements over recent years. Notably, last year’s Court of Justice ruling attracted a barrage of criticism for identifying an object restriction on the basis of a complex factual analysis that many believed was more suited to an ‘effects’ case. This matters, of course, because it is considerably easier for competition authorities (and indeed, private claimants) to prove an object infringement, and considerably harder for companies to defend such an allegation…
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